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Suspended trial of extradition request based on crimes against humanity

Justice Cármen Lúcia suspended the extradition (EXT) 1362, requested by the Argentine government against Salvador Siciliano, a citizen of that country accused of kidnapping and assassinating left-wing political activists between 1973 and 1975. In the request, Argentina maintains that the crimes are crimes against humanity and, for this reason, they would be imprescriptible. So far, six ministers have spoken out on the rejection of the request and three on the extradition authorization.

The trial began at the session on 6 October, but was halted at a request for a hearing from Justice Teori Zavascki. Justice Edson Fachin (rapporteur) and Luís Roberto Barroso, both voted deferring extradition, on the understanding that the crimes against which the Argentine citizen is accused are imprescriptible from the standpoint of the Convention on the Imprincibility of War Crimes and of Crimes against Humanity, adopted by the United Nations General Assembly in 1968, for having been considered as lethal-humanity by the government of his country.

In Argentina, Salvalor Siciliano is investigated for crimes of illicit association, kidnapping committed with violence, threats and homicides, corresponding in Brazilian law to the crimes foreseen in articles 288, single paragraph (armed criminal association), 148 (kidnapping and private jail) and 121 (homicide), all of the Penal Code.

In a vote delivered at the session on Thursday (20), Minister Teori opened the dispute, declaring his rejection of the request. In its view, since the crimes of which the Argentine citizen is accused are overtake under Brazilian law, does not set ups double punishability, essential requirement in STF jurisprudence for extradition to be authorized.

The Minister observes that the Foreigner Statute (Law 6,815 / 1980) and the extradition treaty signed between Brazil and Argentina categorically prohibit extradition when the punishment is extinguished due to the limitation prescribed in the legislation of any of the countries. It should also be pointed out that, since there is no record of any of the causes of interruption of the statute of limitations, the punishment of the offenses of which the Argentine citizen is accused is extinct, since more than 40 years have passed since the facts, prescribed by Brazilian law.

According to Minister Teori, it is not possible to consider the crimes of which Siciliano is accused as imprescriptible on the basis of the UN Convention on the Imprescritibility of War Crimes, since although it has been open to accession since 1968, Brazil has not yet subscribed to it. "This means that the clause of criminal imprescibility resulting from this United Nations Convention does not legally obligate or bind Brazil, either domestically or internationally."

The minister emphasizes that, in criminal matters, the constitutional principle of the legal reserve prevails, which restricts to parliament the possibility of legislating on incriminating criminal matters. It also emphasizes that only domestic law, and not international convention, especially those that have not been signed by Brazil, can regulate the prescription or imprescriptibility of the state's intention to punish.

Minister Teori observes that although Brazil has signed the Rome Statute, which establishes the International Criminal Court and provides for crimes against humanity, in 1998, it can not be applied to the case, since, according to the Federal Constitution, the criminal law can not retroactively, except for the benefit of the defendant.

Ministers Rosa Weber, Luiz Fux, Dias Toffoli, Gilmar Mendes and Marcus Aurelius followed this understanding. Minister Ricardo Lewandowski voted to grant extradition, accompanying ministers Edson Fachin and Luís Roberto Barroso. Due to the request and the allegations in the file that the extradite was ill, the ministers decided to transform the preventive custody for Siciliano's extradition under house arrest.


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